THE UNDER-ENFORCEMENT AND INTERSECTIONALITY OF DOMESTIC VIOLENCE LAWS IN INDIA
This article has been authored by Utkarsh Jha, a law student at NLUJA, Assam.
Since antiquity, crimes against women have been committed. The primary issue here is domestic violence, which occurs in all cultures and in all demographic and age classes. Domestic abuse has been seen as part of patriarchal societies' normative systems for decades. In most countries, women have been abused by their husbands and, in some cases, family members. Maltreatment goes unchecked, unpunished, and knowingly condoned. Domestic violence cuts through race, culture, and community, but the socio-historical, socio-political, and cultural contexts in which it exists are legitimized and understudied. In India, the problem of domestic violence against women is complex and widespread. Women face abuse not only from their spouses but also from family members in both their natal and marital homes. Also, girls and women in India are typically less fortunate than boys in terms of family and societal status, as well as access to material wealth. Marriage is still seen as essential for a girl, the power of a woman's sexuality and its secure transition into the hands of husbands who are thought to own their wives is paramount.
Definition and Nature of Domestic Violence
Domestic violence is a social and legal term that, in its broadest sense, refers to any kind of harassment be it physical, psychological, or financial, between intimate partners, often residing in the same home. In a 1993 Declaration, the United Nations described violence against women as any act of gender-based violence that causes or is likely to cause physical, sexual, or psychological damage or distress to women, including threats of such actions, intimidation, or unlawful deprivation of liberty, whether in public or private life.
India and the menace of Domestic Violence
When it comes to combating violence against women, India has some of the most inclusive laws in the country. India has had a National Human Rights Commission since 1993, with a strong mandate to prosecute all cases of human rights violations. India also has a National Commission for Women, whose mandate includes combating violence against women, and Articles 14, 15, and 16 of the Indian Constitution include provisions prohibiting gender inequality and creating a democratic republic based on equality and basic human rights.
Furthermore, India is a signatory to the Convention on the Elimination of All Forms of Discrimination (CEDAW Convention), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), all of which uphold women's economic rights. But, despite these legal remedies, India's new laws barring violence against women are largely unenforced, and women are also discouraged from reporting acts of violence due to social and cultural barriers. The impractical and ambitious scope of existing legislative requirements shielding women from spousal abuse particularly violence related to dowry payment creates difficulties for organizations and officers seeking to implement such broad steps. As a result, commissions tasked with enforcing these laws are burdened by broad mandates and limited in their ability to enact or execute their results.
Reasons Behind the ineffectiveness of Indian Legal Remedies for Domestic Violence
Domestic Violence in India is on the rise, notwithstanding India's legislative efforts and associated commissions. There are a few key reasons for the Indian government's failure to reduce corruption. First, the central government's failure to reduce abuse towards women has been exacerbated by local police's refusal to enforce existing sexual violence laws. Second, deep-seated societal presumptions and attitudes about women's roles in families have stymied reform efforts. These two reasons are important in explaining why domestic violence reform is ineffective, and they will be discussed further. The third aspect is, women's economic disempowerment, especially in rural areas, must be investigated to see how intersections of caste, class, and education can have a disparate effect on women who are either unaware of or unable to exercise their legal rights.
Related issues continue even after the passing of PWDVA in 2005. Many of the PWDVA's provision remain problematic and ambiguous, and implementation is also uneven. The PWDVA, for example, requires courts to order mandatory counseling in which the victim of domestic violence must attend meetings with her spouse. Since victims may also be required to attend therapy sessions, this choice is contentious. In addition, a lack of public knowledge and insufficient support restrict the effectiveness of this stipulation and other provisions of the law.
Furthermore, critics of the legislation will use the possible criminalization of "insults" and "ridicule" to trivialize the law as a whole. As a result, since the public is generally ignorant of the law's protections and compliance, efforts are underfunded, and the law is largely unenforced. More importantly, the Supreme Court's rulings show that domestic abuse laws cannot be effectively applied because of a cultural mentality about inter-caste ties, gender norms, and marriage. In 2008 Indian Supreme Court case of Dilip Premnarayan Tiwari & Anr. v. State of Maharashtra, Court considered that the sufficient punishment for acts of murder motivated by caste problems, is a notable indication of how deeply these mentalities are embedded. In the case of Narsingh Prasad Singh v. Raj Kumar, (2001), the Allahabad High Court reduced the sentence of abusers who had brutally beaten a woman with a wooden stick and intended to eat her alive to a nominal fine of Rs. 1000, without hearing any reason or reason as to why the punishment should be reduced. Justice Shah noted the repeated difficulties in convincing lower courts to enact domestic abuse laws before issuing the decision, which restored the initial prison term. It is a national disgrace that indiscriminate attacks and abuse are aimed against married women in certain quarters, including the so-called learned, for making obnoxious and anti-social dowry demands, and the accused are let off for various reasons. As a result, discrimination against women persists unabated, despite the fact that the statute no longer serves as a barrier.
Intersectionality and Domestic Violence
Multifaceted identities have an effect on recognizing discrimination against women. Caste, ethnicity, and class barriers exist in India, making it difficult to shield poorer women from domestic violence. Despite the fact that the status of women in India is shifting over time, many women are still coerced into inferior and submissive positions. Male and female responsibilities are specifically described in gender norms. Women are often assumed to be both a wife and a mother. While India is not unique in its expectations of childbearing, pronatalism, i.e. the philosophy of forced motherhood continues to constrain women. Women are often stigmatized because they are unable to become mothers.
The National Human Rights Commission observed that human rights abuses in India are entrenched in deep schisms based not only on acute economic inequality, but also caste, creed, faith, gender, social standing, and other characteristics. Due to their marginalization as weak women in India, where such aspects of domestic violence are commonly recognized as an integral part of the patriarchal social system in which women are considered subordinate, marginalized women and women of low status face a particularly challenging task of disclosing instances of domestic violence. In certain cases, gender stereotypes offer males a moral edge in violent crimes. In the case of TK Gopal v. State of Karnataka, for example, the appellant was accused of brutally raping a one-and-a-half-year-old girl and was found guilty.
The appellate court took into account some mitigating considerations posed by the prisoner before determining the seriousness of the sentence. The convict begged for a lighter sentence because he was the only primary earner in his household, which included two children, ages sixteen and ten, in addition to his wife. The court withheld from giving a harsher punishment on the convict because his daughters had reached adulthood and were about to get married, and imposing a harsher sentence would jeopardize their chances of finding a good match. Thus, the defendant's gender status as the male head of the household and responsibility for correctly marrying his daughters is adequate grounds for a reduced punishment. Ironically, the household was reliant on the patriarch in the first place because of the male gender position of dominance. This case highlights how gender superiority provides legal benefits for those in dominant gender roles, while those in inferior gender roles are left without legal protection.
While cultural prejudice against women continues to play a role in the lack of implementation of laws relating to domestic violence and dowry deaths in India, legal analysts must also consider the self-reinforcing and intersecting complexities of caste, class, and gender in the production of violence against women. Though domestic violence laws in India are largely under-enforced, the issue is compounded among India's poorest and lowest caste women, who lack access to organizational resources, schooling, and legal remedies. India's legal and non-governmental remedies often aim to reform societal conceptions of women while missing the ethnic, caste, and class origins of the issue since India's Commissions and institutions include both metropolitan and elite prejudice.
Thus, the inability of Indian policies to properly solve the issue of spousal violence cannot be attributed solely to their failure to reform societal perceptions. In order for these laws to be successful, they must also solve the widespread issue of lower-income, outcast, and rural women being refused access to legal redress that should, in principle, be open to them. India has an obligation to ensure fair justice for all women, and in order to effectively cater for the interests of a vast number of women, India must account for the intersectional needs of women from disadvantaged communities and lower classes who are subjected to weak local enforcement mechanisms. Given the strong statistical and social association between caste, class, and domestic violence in India, it is important to understand the significance of this relationship and be aware of the nexus of gender and class inequality. A more nuanced intersectional approach should be adopted for the effective implementation of domestic violence laws.